Friday, November 07, 2014

Certiorari Granted in King v. Burwell

Gerard N. Magliocca

When King was decided, I said in a post here that four Justices would be waiting on the courthouse steps for the certiorari petition.  Get ready for some fireworks in the Spring!


I see no dissent from RBG saying "we only take cases when there is a circuit split." Huh.

Good call, Gerard.

I can hardly wait to read the next Roberts opinion explaining how state exchanges actually mean federal exchanges.

Finley Peter Dunne's Mr. Dooley used to remind us that the Court follows the "illiction" returns.

I think the analysis provided by the recent post on the grant a good one. It looks past what the author clearly thinks is a lousy statutory claim (see also another participant that also posted at Scotusblog that the claim puts Scalia and textualism to the test) to deeper issues. This is appreciated though sometimes its hard to do so when the writer clearly thinks something bad is happening (not thinking, e.g., the reference -- contra let's say Prof. Bernstein -- to Lochner is positive).

Scotusblog: "Underlying that issue, however, is the broader question whether the words Congress chooses are to be the sole guide to what a law does, or whether the larger purposes that Congress seems to have in mind should determine how to read the words."

Said another way, the question is whether the United States will remain a nation of laws or will fully transition into a bureaucratic dictatorship?

The theory progressives offered to constitutionalize facially unconstitutional bureaucratic lawmaking was that Congress's enabling statute set the policy and the bureaucracy only performed a "quasi-legislative" function of filling in the details to enforce that policy.

In King, the progressive bureaucracy is now claiming the power to rewrite unambiguous policy Congress set out in the enabling statute and substitute policy of its own.

This is not a simple statutory interpretation case because no one can honestly argue that the Obamacare statute limiting subsidies to people “enrolled in through an Exchange established by the State under section 1311" is vague or can in any way under the English language mean "exchange established by the federal government."

This case will determine whether Congress or the bureaucracy will enact law.


The troubling thing here is that there's no split anymore. How does a Justice of the Supreme Court sleep at night jumping in here? What's the grave injustice to be redressed here that 270 electoral votes in the next election won't fix? We've seen far worse suffering and misery allowed to persist on mootness and ripeness grounds. What lunatic in a robe thinks he's Saving the Republic here?

"because no one can honestly argue that the Obamacare statute limiting subsidies to people “enrolled in through an Exchange established by the State under section 1311" is vague "

You need to be honest yourself there Bart, I imagine you know full well that the argument is not that the statutory language in that provision is on its face ambiguous, but that it is ambiguous when considered with other provisions of the entire statute (for example, language stating that if states choose not to set up exchanges the federal government may create and run 'such exchanges').

Mr. W:

The provision at issue does not conflict with any other provisions of the Obamacare statute and by definition cannot be vague in that manner. Indeed, the plain meaning of the provision conforms with the denial of subsidies to federal possessions.

The problem here is that Congress's intent to bribe states into building their own exchanges by offering state exchange customers subsidies failed epically and undermined their other goal of massively redistributing wealth to create more government dependents.

However, Congress's failure of socialist planning does not change the plain meaning of the statutory provision at issue.

Our CO "dopey-ganger" is on record that "The Gilded Age" was America's best years. He continues with "progressive," "socialist," as themes of his rants, because of his wet dreams of those good old days before regulation as America grew from 3+ million in 1787 to 300+ million today. The FDA, Social Security, Medicare, Medicaid, (and others) now Obamacare, "progressive," "socialist,", as he continues his rants. Attempts to undo these have failed in the past. But our CO "dopey-ganger" feels secure in his high and mostly white mountaintop community, from which he can relate client anecdotes that may demonstrate lack of professionalism.

As to why the Court granted cert despite lack of circuit split, it can be construed as political. But Gerard's "prediction" of fireworks in the Spring may be a fusie, especially if millions of Obamacare insured are no longer insured, who may then fume, taking revenge in the 2016 elections, more than a year after next Spring. But the GOP controlled Congress will have the power to come to the rescue of Obamacare and such insureds, in which case the GOP could claim credit, not for Obamacare, but for the Really Affordable Health Care Act (or perhaps a "progressive," "socialist," single payer system?). The Court may even "punt" next Spring if it considers the timing relative to the 2016 elections not so good politically.

But our CO "dopey-ganger" is obviously not only a "headnotes" case reader but also puts on blinders in interpreting a lengthy statute with a phrase that in context is ambiguous. This is a "simpletonian" approach to law.

Speaking of simpletonianism, consider this excerpt from Erwin Chemerinsky's review of a recent bio of Justice Scalia in the LATimes:

"In fact, if one were to take Scalia’s originalist philosophy seriously, it would be unconstitutional to elect a woman as president or vice president until the Constitution is amended. Article II of the Constitution refers to these officeholders as 'he,' and the framers undoubtedly thought that they had to be men. Women were not even accorded the right to vote until the 19th Amendment was ratified in 1920."

The Legal History Blog's Sunday book feature provides a link to the review.

That bio has received mix reviews. I felt the author's bio on Justice Douglas was not that good. So, having read Joan Biskupic's quite serviceable bio (her recent book on Sotomayer if very good), I'd pass.

I think EC goes overboard. I respect him overall, but he has that tendency at times (e.g., don't really want to read his new book on the courts -- sounds overblown) Don't know, e.g., that the framers "never" thought about corporation's speech rights. Corporations existed though corporations were overall quite different back then in various ways.

And, the "he" reference is a bit silly. "He" was a generic. Women were given a national right to vote in 1920. Women had a local right to vote in a few places before then. It is unclear that an "originalist" would determine women were illegitimate officeholders in that respect.

Scalia warrants a good amount of criticism but overdoing it is counterproductive.

Shag and anyone following this conversation:

Words have meanings.

The current Democratic Party is not conservative, moderate, pragmatic or liberal. It policies are almost universally progressive and now socialist.

Socialism is the government directing the economy to redistribute wealth.

It comes on three flavors - government ownership, Zwangswirtschaft and worker ownership ("economic democracy"). Only the first two have been implemented in real life.

Obamacare is textbook German Zwangswirtschaft socialism where the government declines to nationalize an industry and instead abuses its police, taxing and spending powers to direct the industry as if it was the legal owner.

Progressivism began as a compromise between free markets and socialism, originating in Bismarckian Germany. Its key elements are totalitarianism (no recognized limits on the reach of government power), a regulatory bureaucracy, a progressive tax system, minimum compensation mandates on business and a welfare state.

Over the past century, every progressive political economy (the latest being the United States under Obama) has partly adopted socialist policies.

While the "he" reference may be "silly," that may be a problem of textualism/originalism. That "he" related to the President and VP under Article II, not at the local elections level. To suggest that the use of "he," "him," and other male references in the Constitution pre-19th Amendment was generic is a stretch at the federal level. One could argue, as I would, that the 19th Amendment implicitly made such male references generic. But would a textualist/originalist with a simpletonian mind agree? Assuming Hillary were nominated in 2016, might we expect right wing simpletonian extremists to come out of the woodwork to challenge her eligibility? After all, such a simpletonian could assert how simple it could have been to include an explicit statement in the 19th Amendment amending such male terms in the pre-19th Amendment Constitution.

(One of the problems with Amendments is how they are additive rather than incorporated into various parts of the Constitution. There was an earlier post on this aspect, but I'm not sure it was at this Blog. I started a review of the Constitution to identify male terms but because of time and eyesight issues gave up. Perhaps there is a paper on such a review but I am not aware of it.)

I forgot to mention the Clean Water and Clean Air "progressive," "socialist," legislation Is clean air, is clean water, an inalienable right under the Constitution? Why was a Pure Food Law needed? Has the free market (including "The Gilded Age") given us clean air, clean water, pure food without the need for legislation - and regulation? And what has the free market provided by way of healthcare pre Obamacare voluntarily without being subsidized by primarily federal legislation/regulation?

And Koch-heads (older, white, uneducated and undereducated males overwhelmingly voting Republican) might be expecting something other than coal dust up their noses from the Koch Bros. than what their name might suggest.

By the Bybee [expletives deleted], the common law of nuisance was not adequate to provide the protections that it took "progressives" to bring about. But our CO "dopey-ganger" just loves those good old days of "The Gilded Age" that perhaps he thinks the Koch Bros. will take us back to.


In a liberal democracy, the people elect representatives to enact law and those representatives are limited to enacting laws which prevent people from harming one another.

Progressivism removes most lawmaking from the people's elected representatives and grants it to an unelected and unaccountable bureaucracy. Also, progressivism recognizes no natural limits on the reach of the bureaucracy to direct people's lives.

Socialism goes even further and affirmatively directs the economy to redistribute wealth.

Now let us take a look at how these governments address "pollution."

In a liberal democracy, the people's representatives would enact statutes to bar people from dumping pollution onto their neighbor's property which causes them actual and substantial illness or death.

Under progressivism, a bureaucracy imposes decrees against the will of the people forbidding them from engaging in activities which often harm no one else. (See, e.g., buying cars which violate the CAFE standard or incandescent light bulbs).

Under Zwangswirtschaft socialism, the government directs the energy industry by capping and taxing energy sources it opposes and redistributing wealth from those disfavored sources to subsidize and mandate energy sources it prefers.

As I noted above, the Democrats almost universally impose progressive and socialist policy.

I don't think we need to go to the "he" thing to challenge originalism. It might work (don't really think so) but it's a bit too cute & I'd hope there were better weak arguments from that side to cite. Mr. W, e.g., flagged that affirmative action thing recently.

Chemerinsky's review of the Scalia bio is replete with his and author's criticisms of Scalia's textualism/originalism, including this:

"Even more important, even if the original understanding could be discerned, that does not explain why it should control modern constitutional interpretation. Long ago, Chief Justice John Marshall wrote that we must never forget that it is a Constitution we are expounding, a Constitution meant to adapt and endure for ages to come. The Constitution was written for a vastly different world, and applying its original meaning leads to results that are clearly unacceptable. The same Congress that ratified the 14th Amendment also voted to segregate the District of Columbia public schools. Under an originalist philosophy, Brown v. Board of Education was wrongly decided."

In defending textualism/originalism, proponents go to extreme lengths to treat Brown as originalist. As I have noted on several occasions at this Blog, it is rare for direct challenges of Brown in this day and age. But originalism as a legal theory fails on so many tests.

As to the male references in Article II to the President and VP (as well as in Article I to Representatives and Senators), surely such were not generic or neutral when enacted/ratified. The 13th A was neutral on gender but the 15th A was not. And the 14th A did not provided for women's suffrage despite efforts to establish discrimination on gender that failed. So it took until the 19th A ratified in 1920 to provide women the right to vote:

"The right of citizens of the United States to vote shall not be denied or abridged by the United States or by any State on account of sex.

Congress shall have power to enforce this article by appropriate legislation."

Words having meaning. How does the "right to vote" relate to right to serve as President or VP or in Congress in looking at the Constitution from an originalist view? Would the 19th A have been ratified if it specifically amended provisions in the Constitution referencing males as also applying to females? I don't know. (Maybe this could be a new book idea for Gerard to explore.) As I noted in an earlier comment:

"One could argue, as I would, that the 19th Amendment implicitly made such male references generic. But would a textualist/originalist with a simpletonian mind agree? Assuming Hillary were nominated in 2016, might we expect right wing simpletonian extremists to come out of the woodwork to challenge her eligibility? After all, such a simpletonian could assert how simple it could have been to include an explicit statement in the 19th Amendment amending such male terms in the pre-19th Amendment Constitution."

Those who actually read Chemerinsky's review are informed on his and the author's objections to Scalia's textualism/originalism beyond gender in Article II. But on the ground history pre-19th A tells us quite a bit about discrimination against women that the Court declined to recognize under the 14th A.

(Note: I haven't checked for action taken by Congress pursuant to the enabling clause in the 19th A, such as perhaps declaring that the 19th A neutralized male references in the pre-19th A Constitution. Could Congress do so or might such action exceed the bounds of Article V?)

The examples provided are plural in nature so "he" would not be useful. So "citizens" or "slavery" (slaves as a whole) etc. I think the originalist Scalia supporter probably could find some generic "he" usage in 1787 that was applied to women. Some reference that accepted the "men" reference in the DOI also applies to women also probably could be found. It's seems a silly appeal to absurdity.

It is particularly notable that the second section of the 14A when dealing with what sort of suffrage denial would justify the never used penalty did specifically speak of "male" inhabitants. Now, I think the dissent in Richardson v. Ramirez makes a good case that this section shouldn't be given too much force in respect to those convicted of crimes and the same applies here. But, the use of "male" then was quite upsetting to women suffragists of the age since it suddenly did provide a sex specific benefit.

But, does this mean in Art. I, "the people" having the right to choose members of the House includes women, if the state so authorized (e.g., the apparent short term suffrage given to women with property in NJ)? Would a rich woman from NJ at that time have the right to serve in Congress under that logic?

The 19A does -- like the 16A -- have both a formal and symbolic value. Note how Adkins v. Children's Hospital suggests it is a sign women should be treated equal to men in various ways (there a minimum wage law for women was struck down). Prof. Akhil Amar and others argues giving women the vote in effect suggests full equality as citizens in jury service, serving public offices etc.

As to gender equality, there the courts etc. didn't protect women in various ways for some time though women did have some basic rights under the 14A. And, they got relief in other ways. So, when the USSC would not protect the right of a woman to be a lawyer, Congress did authorize a woman to argue in front of the Supreme Court.

"as well as in Article I to Representatives and Senators"

I do see usage of "he," though 'person' is used more often.

OTOH, generic "he" was used long before that:

People who actually take originalism seriously probably can do the research with pages of analysis and footnotes and the net result (as will be often the case) is "open to debate."


Here's a 2010 article by Leslie M. Rose "The Supreme Court and Gender-Neutral Language: Setting the Standard or Lagging?" available (50 pages) at:

This article focuses upon how Justices in recent years have responded to gender-neutral policies relevant today. It closes with:

"While we cannot go back and change Marbury or Lochner,it is time for all the members of the Roberts Court to set a gender-neutral standard. The addition of the newest justice may move the Court closer to that standard."

Yes, Bart,words have meanings.
Yet, it doesn't help when you stretch the meaning of words in such a way that they mean everything and nothing. Your usage of socialism is a case in point. You fall for Mises's sloganeering who happily threw socialism, Zwangswirtschaft (compulsory economy) and state capitalism together claiming them being all one. However, they are more like Venn diagrams with their meaning intersecting, but not completely overlapping.
E.g. you claim that Zwangswirtschaft always aims at redistributing wealth and income. The German term Zwangswirtschaft has its origin in the war economies where government intervenes to direct the productive process in support of the war effort (not unlike FDR during WWII). The redistributive aspect plays no role whatsoever.
Planwirtschaft or planned economy is a necessary part of socialism - it confers all economic planning to a central authority - but redistribution is a completely different and separate aspect. More importantly, there have been non-socialist economies like Japan's with a strong central directing authority MITI, the powerful finance ministry. South Korea was probably slightly different where the state more chose winners and losers, backing big industrial conglomerates, the chaebols.
In a communist society, redistribution is supposed to be not an issue at all since the centrally planned production allows everyone to consume according to his or her needs (Oh, what a wonderful world!). In "real world" socialism, the means of production had been nationalized to varying degrees, and the few remaining privately owned businesses were heavily taxed as a disincentive and with clear distributive intentions. Furthermore, income had to be distributed to those members of society who were not directly involved in the production process (teachers, health care workers, bureaucrats etc). BTW, in Titoist Yugoslavia, key industries were actually owned and run by the workers themselves. A lot of criticism from the left of Soviet society was aimed at its state capitalism where it was not the private owner of an industry but rather the central bureaucracy which disowned the workers of the fruits of their labor.
Finally, you conflate the statist, conservative Bismarckian welfare state with progressivism. Nothing could be further from the historical truth. Bismarck was afraid of the growing (then still socialist) Social Democratic Party, and his welfare policy aimed at bribing the German working class away from that party - in the end without success. The Progressive movement in the US started out at the grass roots, particularly in the rural states, and only later did the well-to-do hitch on. In part because they realized that the growing concentration processes distorted competition, hence the trust busting.
You are right insofar as some elements common to one or the other aspect of socialism pops up in Republican lite Obama, but that doesn't turn Obama's Democrats into socialists.

For more on textualism/originalism and Justice Scalia, take a look at Mitchell N. Berman's "Judge Posner's Simple Law," a review of Posner's new book "Reflections on Judging" that is critical of Justice Scalia's textualism/originalism. So in effect this is a two-fer, addressing Posner's critiques of Scalia and his co-author Bryan Garner's recent book "Reading Law: The Interpretation of Legal Texts." Berman sorts out the back and forth criticisms of both books including by surrogates, with some fairly good balancing.

A link to Berman's review is available at Larry Solum's Legal Theory Blog with Solum's "Highly Recommended." Or:

The review's 26 pages are a good read.

My next read (after today's lunch), is Ronald Turner's "A Critique of Justice Antonin Scalia's Originalist Defense of Brown v. Board od Education" in UCLA Discourse. A direct link is provided at Concurring Opinions. Let's see how this ties into Chemerinsky's review and Berman's review. (This paper is a relatively short 13 pages of text.)

By the way, Gerard has several posts at Concurring Opinions on King that may not be fully reconcilable with his King posts at this Blog. Brett, as well as some VCers (but not here), seem to stalk Gerard at CO. In any event, Gerard gets many more comments at this Blog than at CO.

Maybe Gerard has an Ace up his sleeve to trump King. Is an amici brief in the cards?


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Turner's article was short enough to serve as an appetizer before lunch today. An excellent read.

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It's a good article -- looking at actual history is often useful, at times contrasting to what "originalists" argue it holds.

Linda Greenhouse's column on the grant is also a good read.

The corruption of man is followed by the corruption of language. When simplicity of character and the sovereignty of ideas is broken up by the prevalence of secondary desires, the desire of riches, of pleasure, of power, and of praise, — and duplicity and falsehood take place of simplicity and truth, the power over nature as an interpreter of the will, is in a degree lost; new imagery ceases to be created, and old words are perverted to stand for things which are not; a paper currency is employed, when there is no bullion in the vaults. In due time, the fraud is manifest, and words lose all power to stimulate the understanding or the affections

-Ralph Waldo Emerson

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